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Professor Joseph Kohm, who teaches sports law at Regent University School of Law and is a certified MLB agent (and former member of the Syracuse men's basketball team), checks in with an interesting question:

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My wife [Professor Lynne Marie Kohn] teaches Family Law and Gender in the Law at Regent University and she asked me a very interesting question today. She wondered what would be the reaction if Rick Pitino was a woman. What if she was a prominent Division 1 head women’s basketball coach and it came to light that she had engaged in sexual intercourse on a table with a man (not her husband) she just met that evening in a restaurant? Some news reports in the Pitino matter say that one of his assistants was called to the restaurant and that the assistant was able to hear what was going on inside. Not to mention the abortion issue.

I looked at Coach Pitino’s employment contract and he can be dismissed for conduct that, “could objectively be anticipated to bring Employee into public disrepute or scandal” or his actions tend, “to greatly offend the public.” Similarly, he can be terminated if his actions sink to a level of “moral depravity.” Maybe it’s just me but I sense kind of a boys-will-be-boys attitude by the Athletic Director, whereas if a Coach who was a woman engaged in this type of behavior, she would have to wear The Scarlet Letter.

Yes, it's likely that a female in that same situation would have received much less favourable treatment. Yet the mainstream sports media was likely to give him a pass no matter what his sex so that they could ensure future access to him, his team, and the school's other sports teams.

When it comes to keeping his job, however, it's likely that his past success as a coach and his ability to attract recruits to the school is what has kept him in his job more than his sex. Sports teams will always look the other way when there's enough success and money involved. If Pat Summit was engaged in this same scandal, would she be fired, given the incredible level of success she has achieved and her ability to attract the best talent to Tennessee? I don't know.

Great point and this is not even debatable. She would have been fired (or heavily pressured to resign) the day after the sex-and-abortion story broke. The rules for women's "morality," and the media coverage of them, are different.

Pitino's success partly explains why he has his job while Mike Price or Larry Eustachy lost theirs. But success would not save a similarly situated women's coach--even if she was Pat Summitt.

Pitino's contract allows him to be terminated for conduct that, “could objectively be anticipated to bring Employee into public disrepute or scandal”.

In our society, and probably nearly every other one, a woman willing to engage in semi-public sex with a man she just met is significantly more scandalous than a man willing to engage in the same conduct. This is a fact, not a normative statement. Conversely, Pitino would be more likely to be fired for punching a drunk and verbally abusive female Cardinal fan, than Pat Summitt would for punching the male equivalent.

The more interesting question to me is: can a university legally take these societal double standards into account in determining what is likely to bring the employee into public disrepute or scandal?

Interesting question from Dave. In general, no, a school cannot use "acceptable societal norms" to treat similarly situated men and women differently.

But on the ground, I think it could get away with this once, just as a matter of proof. If it keeps Pitino, then fired the women's basketball coach for similar conduct, she would have facts supporting a pretty strong equal protection claim.

The publicity may be enough punishment for him, but either way women are just treated different and looked at different in the sports world or when holding positions of power. But if a woman was coaching Louisville Men's Basketball, and accomplished the same as Pitino did, her result would have been the same.The problem is, there really no females in the same situation, women's basketball is no where near this level. Maybe a Condoleeza or Hillary ....